Paterno, Victor and Hasner, Abraham - Interim Order, June 15, 1994

Interim Order, June 15, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of

the Alleged Violations of Articles 25 of the New York State Environmental Conservation Law
(ECL) and Parts 661 of Title 6 of the Official Compilation of Codes, Rules and Regulations
of the State of New York (NYCRR)

- by -

VICTOR PATERNO and ABRAHAM HASNER,

Respondents

INTERIM ORDER R2-0091-92-05

WHEREAS:

Pursuant to a Notice of Hearing and Complaint issued on July 21, 1993, an administrative enforcement hearing was held before John H. Owen, Administrative Law Judge ("ALJ"), on October 5, 1993 at the Department's Region 2 Office located in Long Island City, New York. The Department Staff appeared by Steven Goverman, Esq. Respondent Abraham Hasner appeared by E. Isaac Shulman, Esq. Neither Victor Paterno, nor his representative, appeared at the hearing

I conclude that this matter should not be decided without proper service of process on Respondent Paterno being effected.

NOW, THEREFORE, have considered this matter, it is ORDERED that:

The Department Staff are directed to take any necessary measures to properly serve Victor Paterno with a Notice of Hearing and Complaint in this matter.

When service of process on Victor Paterno is effected, ALJ Owen shall take all necessary steps to complete the hearing process. Whereafter he shall submit a supplemental hearing report.

In the Matter of the Alleged Violation of Article 25 of the New York State Environmental Conservation Law (ECL) and Part 661 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (NYCRR)

- by -

VICTOR PATERNO
and
ABRAHAM HASNER,

Respondents

DEC File No. R2-0091-92-05

HEARING REPORT

PROCEEDINGS

This matter involves Respondent Paterno allegedly constructing a deck and dock in and over protected tidal wetlands and/or in protected adjacent areas at Respondent Paterno's alleged residence allegedly owned by Respondent Hasner without having first obtained the required permit from the Department of Environmental Conservation.

Pursuant to a Notice of Hearing with Complaint attached, dated July 21, 1993, the New York State Department of Environmental Conservation (the "Department" or "DEC") Region 2 Staff (the "Department Staff" or "Staff") initiated a civil administrative enforcement proceeding conducted in accordance with the State Administrative Procedure Act ("SAPA"), Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"), Part 661, and Article 25 of the New York State Environmental Conservation Law ("ECL"), against Victor Paterno ("Paterno") and Abraham Hasner ("Hasner").

Neither Respondent served nor filed any answer.

The subject site, Paterno's alleged residence, is located at 74 Whitman Drive, Brooklyn, New York 11234.

In accordance with the Notice of Hearing, an adjudicatory hearing concerning the site was convened before Administrative Law Judge ("ALJ") John H. Owen on October 5, 1993 at the Department's Region 2 Headquarters at Long Island City, New York. Steven Goverman, Esq., Assistant Regional Attorney, appeared on behalf of the Department Staff. Neither Paterno, nor anyone on his behalf, appeared at the hearing. Hasner appeared with E. Isaac Shulman, Esq., his counsel.

At the opening of the hearing Mr. Goverman requested that the spelling of Hasner's name on the Notice of Hearing and Complaint be corrected from Hasmer to Hasner. The application was granted and all future documents are to bear the correct spelling and any prior documents are deemed to be so corrected. In addition to the amendment correcting the spelling of Hasner's name, another pleading defect was addressed; namely, that the Hearing Notice stated "Monday, October 5, 1993" as the hearing date whereas October 5, 1993 was a Tuesday. In this connection, Mr. Goverman assured the ALJ that Paterno had not appeared on Monday, October 4 either.

The Department Staff called as its witness Lisa K. Brown, a Marine Resources Specialist, Region 2; Respondent Hasner called himself as a witness; and Mr. Shulman placed upon the record certain relevant stipulations on behalf of his client.

Some 16 documents were received in evidence.

The hearing concluded on October 5, 1993.

Mr. Goverman was allowed fifteen days from the close of the hearing to serve and file a post-hearing memorandum and Mr. Shulman was allowed fifteen days after receipt of Mr. Goverman's memorandum to serve and file a responding memorandum; however, no such post-hearing memoranda were received. Thereafter the ALJ requested that the parties submit memoranda on the issue of how respondent Hasner was liable. Each respondent submitted such a memorandum and there was some further material submitted as to this issue, the last under date of December 30, 1993 as of which date the record is deemed closed.

THE CHARGE, THE APPLICABLE LAW AND THE PROOF REQUIRED

ECL 25-0401 (6 NYCRR Part 661) prohibits the alteration of any regulated tidal wetland or adjacent area without having first obtained a DEC issued permit.

It follows then that in order for the charge to be sustained the following four (4) elements must have been proven by a preponderance of the evidence: 1) that the site is a regulated wetland and/or adjacent area; 2) that the site was altered; 3) that Paterno and/or Hasner are responsible for the alteration; and 4) that the DEC had issued no permit authorizing such alteration.

DISCUSSION

Jurisdiction and Notice

The first question in a proceeding such as this is whether the Staff has obtained jurisdiction over each Respondent as by proper service as well as whether the service afforded each Respondent with a sufficient number of days advance notice of the hearing.

"Service of the notice of hearing and complaint shall be by personal service, consistent with the CPLR, or certified mail. Where service is by certified mail, service shall be complete when the notice of hearing and complaint (or motion for summary order) is received."

As applicable here the CPLR provides at Section 308(2):

"Personal service upon a natural person shall be made by any of the following methods:

... 2. by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service..."

There is no question but that Hasner was properly served and received sufficient notice and no details need be supplied in that Hasner, as noted, appeared at the hearing with counsel and that appearance was general in nature, that is to say no type of limited or special appearance was attempted for the purpose of contesting jurisdiction (service) and there was no objection as to the adequacy of the notice.

As noted, however, Paterno did not appear. He was served, if at all, under subdivision 2 of CPLR 308 (so-called "substituted service") as by delivery "to Loretta Biscotti, the sister-in-law of Victor Paterno at 74 Whitman Drive" on July 26, 1993 (Affidavit of Personal Service, Exhibit 1 in evidence).

This is "substituted service", but only one part of it. CPLR 308(2) requires in the instant service posture at least two more steps:

Mailing of the papers within 20 days of the delivery to either the defendant's residence or place of business.

Filing proof of the double service with the clerk of the court within 20 days of the mailing.

Here the filing of the proof of service or at least the place of such filing (a County Clerk's Office) is inapplicable to this proceeding but, still, service (the mailing) must be proven here by affidavit of service or otherwise.

Such proof of service must cover the following points in addition to the time, place and person served (delivered to): 1) what exactly was served (delivered); and 2) the date of timely mailing (of the same papers) to the residence or business.

Here the affidavit of service shows only delivery of a "Notice of Violation" (emphasis added), not a Notice of Hearing and Complaint. It does not recite any mailing whether timely or not.

There are other defects in the affidavit of service: it has no caption tieing the delivery to this proceeding; and it does not tell us where "74 Whitman Drive" is (whether Brooklyn or elsewhere) so no connection is really effected to Paterno's "actual place of business, dwelling place or usual place of abode..." (CPLR 308(2))

The Staff made some attempts at service by "certified mail" pursuant to 6 NYCRR 622.3(b); however, all attempts (Exhibit 4 in evidence) made prior to the delivery to the sister-in-law failed and an attempt thereafter (on September 24, 1993, Exhibit 3 in evidence) is also ineffective for at least two reasons: 1) no receipt signed by Paterno or anyone on his behalf was produced and thus service never was "complete" (that is there really was no service) since there is no proof of when this mailing was "received"; and 2) without proof of the time of receipt, there is no showing that Paterno received timely notice (15 days for tidal wetlands proceedings - 6 NYCRR 622.3(b)(1)IV)). Indeed, even if the papers had been received in due course after mailing the notice would be short; i.e. a September 25, 1993 receipt date to an October 5, 1993 hearing date is only some 10 days.

In its complaint, the Staff was seeking to have both Paterno and Hasner adjudged to have violated the statute twice (once for the deck and once for the dock) and to have each pay the maximum civil penalty of $10,000 for each violation and also that both be ordered to dismantle the deck and dock and remediate by otherwise returning the site to its former state. At the hearing, Mr. Goverman amended the request for relief by deleting entirely the request for a civil penalty against Hasner and deleting the request that the dock (and a ramp to it) be dismantled, indicating that the Staff would be satisfied if only the deck were dismantled and that the dock and ramp remain.

The Proof Presented

As to element 1 of the charge (that the site be a regulated wetland and/or regulated adjacent area) the proof showed that a bulkhead under the landward side of the deck was shown on Tidal Wetlands Map No. 592496 so that only that portion of the deck seaward of the bulkhead is in a regulated area.

In summary then what the Staff wishes to have brought about is the removal of the seaward portion of the deck and a (necessary) relocation of the dock as well as the ramp, which would otherwise collapse when the supporting deck was removed.

As to the second element of the charge (alteration of the regulated area), since the deck postdated the effective date of the Tidal Wetlands Map that portion of it (as well as its underpinnings) which is seaward of the bulkhead constitutes alteration of the protected area.

There are two principal evidentiary supports for the finding that the deck (and dock and ramp) post-dated the effective regulatory date. One is the photographs (Exhibits 7, 8, 9, 10, 11 and 12 in evidence) which show that the construction could not be almost 20 years old, especially being on the water; and, secondly, Hasner testified that it had to be Paterno who did the construction and that Paterno had not occupied the premises at any time much before he obtained the written lease (Exhibit 14 in evidence) from Hasner, with the lease having been executed by the parties and acknowledged by them before a Notary Public on October 22, 1991.

Element 3 of the charge (involving the question of the responsibility for the alteration of the regulated area) has been established by clear inference based upon Hasner's testimony that the subject construction (with which Hasner had nothing to do) was carried out only after Paterno came into sole occupancy and control of the site, there not even being any suggestion that anyone else could possibly be responsible for the construction.

Element 4 of the charge (involving the question of whether the DEC had issued a permit authorizing the construction) was clearly established by Brown's testimony that the Department's records had been searched and that no such permit had ever been issued by the DEC.

As to Paterno I need not be concerned as to whether he is actually responsible and liable (and I must avoid pre-judging any defenses he may be called upon to assert in the future) for the reason that while no personal jurisdiction has been obtained over him this proceeding against him is subject to renewal.

Hasner's Liability

As to Hasner, while he was duly and timely served and did appear generally with counsel, his mere status as owner/landlord does not end the inquiry as to whether he is responsible and liable.

So far as the record shows, Hasner was at all relevant times an absentee landlord residing in New Milford, New Jersey. He gave no permission to Paterno to construct the deck, dock or ramp; and he was not aware of this construction until he was served with the enforcement documents or perhaps a short time earlier when he allegedly (Hasner denies it) received a Notice of Violation by mail.

In exploring the issue of Hasner's liability the lease between himself and Paterno must be studied.

There follows all possibly relevant extracts from the October, 1991 lease in evidence:

Rider paragraphs 6, 7 and 8:

"6. Tenant has right to make any and all improvements and renovations subject to their conformance with accepted standard or existing codes and laws if needed... 7. Tbnant [sic] has right to put in pool, including sidewalk, brickwork and deck work. 8. Tenant will secure any and all permits required by law." (The "deck" referred to at Rider No. 7 appears to mean a deck around an above-ground inland pool and not the subject deck.)

Lease paragraph 2:

"That the Tenant shall take good care of the premises and shall, at the Tenant's own cost and expense make all repairs. Except improvements and renovations which will be made by tenant. Landlord only responsible for bursts pipes in wall and leaks from roof."

Lease paragraph 6:

Re-entry "... for the purpose of examining the [premises] or making such repairs or alterations therein as may be necessary for the safety and preservation thereof."

Rider paragraph 14:

"Landlord is responsible for maintaining and replacing of all heating equipment and or burst pipes, leaks from roof and plumbing."

Lease paragraph 8:

Re-entry upon (1) desertion of or vacating the premises; (2) default in rent payment; (3) breach of any other lease term. (Lease paragraph 13 is to the same effect.)

Lease paragraph 17:

"It is expressly understood and agreed that in case the Tenant shall fail to comply with any of the statutes, ordinances, rules, orders, regulations and requirements of the Federal, State and Local Governments or of any and all their Departments and Bureaus, applicable to said premises, the Landlord may, if the Landlord so elects, at any time thereafter terminate this lease and the term hereof, on giving to the Tenant five days' notice in writing of the Landlord's intention so to do, and this lease and the term hereof shall expire and come to an end on the date fixed in such notice as if the said date were the date originally fixed in this lease for the expiration hereof. Such notice may be given by mail to the Tenant addressed to the demised premises."

The lease is also terminable upon assignment, mortgage and bankruptcy.

In its brief, the Staff (ARA Goverman) argues that it is the law that a landowner must be aware of conditions on his property and to maintain it in a lawful manner, citing Basso v. Miller 40 NY2d 233, 241 (1976).

Basso is a negligence case in which one plaintiff fell into a pit on defendant's land and another landed on rocks when his motorcycle went out of control due to ice on the defendant's road. There was no relevant lease involved.

The quote at page 241 which Staff misquotes (and which is not from the Basso opinion but from a federal case) reads:

"A landowner must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances..." from Smith v. Arbaugh's Rest., 469 F.2d 97 (D.C. Cir. 1973), at page 100.

Staff next argues that 6 NYCRR 661.5 use Categories 1 and 57 and Real Property Law Section 231(1) required Hasner to re-enter the premises and abate the "nuisance" to save himself from liability under RPL 231(2).

There are several problems with this: 1) Hasner, as noted, was not aware of Paterno's violation until the papers were served upon him, or at least not until, shortly before, he had received a Notice of Violation and Hasner has not yet been adjudicated to be in violation and/or required to remediate in any way. 2) The Real Property Law is not what the DEC enforces and in any case RPL 231(1) requires that Paterno have been in a relevant "...illegal trade, manufacture, or other business..." which he was not. Here again, Staff misquotes the law, to wit: "Real Property Law 231(2) renders a landlord jointly liable with his tenant for any damage resulting from an "unlawful use, occupancy, trade, manufacture or business" (emphasis mine, and those emphasized words are not in either RPL 231(1) or (2)). 3) Paterno's unlawful deck was not upon the leased land but beyond its northern boundary and over tidal wetlands water. Neither the DEC, the Army Corps of Engineers nor any other concerned agency consented to any dismantling by Hasner of anything over tidal wetlands waters.

Staff also cites some other cases concerning the abatement of nuisances (assuming a well-constructed, cantilevered and nice looking deck is a "nuisance") such as: Leonardo v. Ward, 129 Misc.2d 326 (Sup. Ct., NY Co 1985) in which a tenant's store was closed by the NYC police under the "Pad Lock Law", for allowing gambling after prior gambling violations; State v. Rock, 147 Misc.2d 231 (Sup. Ct. Saratoga Co. 1990) where the Attorney General sued a son/lessee and his father/owner to abate a nuisance in the form of an unpermitted waste treatment facility and the father was held liable only because he was well aware of the use of his property well prior to the State action; and State v. Monarch Chemical, 90 AD2d 907 (3rd Dept. 1982) where the Attorney General sued to abate contamination of the soil and groundwater under the premises leased to the chemical operator. The owner moved to dismiss claiming that an affirmative act on his part was required. The motion was denied and the denial affirmed on appeal; however, the case was remanded for trial meaning there were still unresolved questions of fact as to the landowner's liability and the Court made this quite clear:

"But the legal concepts governing a landlord's liability for its tenant's activities have been expanded to the point that a landlord may now be responsible for negligence in the selection of a tenant (People v. Scott, 26 NY2d 286, 289) and also for the wrongdoing of the tenant when the landlord continues to exercise control over the premises (People v. Scott, supra, p. 290). Furthermore, a landowner is required to maintain his property in a reasonably safe condition in view of all the circumstances (Basso v. Miller, 40 NY2d 233, 241). The record reflects the possibility that, after the lease was entered into, Knowles [the owner] was made aware of the hazard of chemical seepage as a result of an engineer's investigation of the site, yet failed to take any precautions to prevent contamination of the ground water. Moreover, given that the lease contains a covenant to repair, and a right of re-entry exists, the extent of Knowles' continuing control of the site is also a matter of factual determination." (p. 907)

In Hyman, an employee of the owner/landlord's contractor dropped a shelf on a tenant's head:

"Here the decisive facts are simple. The defendant [the owner] had no notice of the danger. He had not authorized any work which might reasonably be expected to create danger. We think he is not liable for the act of a contractor's servant." (p. 439)

Pickett, where a passerby slipped on sidewalk ice formed as a result of an independent contractor washing the owner's windows, is to the same effect.

Lastly, Staff cites the 1878 case of People ex rel. Jay v. Bennett, 14 Hun. 63 where under specific then statutes (not unlike RPL 231(1) and (2)) a landlord/owner had the main lease and all subleases declared void as a result of one of the subtenants selling liquor without a license.

Respondent Hasner cites a 1987 New York City Civil Court case, Friends of Yelverton Inc. v. 163rd Street Imp. Council Inc., 135 M.2d 275 for the proposition that RPL 231(1) should be used only in extreme circumstances:

"The city also cites section 231(1) of the Real Property Law. That does afford a landlord the right to evict by self-help a tenant [unlicensed day-care facility] using the premises 'for any illegal trade, manufacture or other business.' But under the principles discussed above, that statute should be used sparingly. It should not be used in situations not involving such Penal Law violations directly related to the premises as prostitution, gambling or narcotics or in the absence of either urgent need for haste or conclusive proof of illegality such as a penal conviction. This is particularly so since RPAPL 711(5) already affords a landlord the most summary of summary proceedings without the need for any preproceeding notices or demands for just such use of premises for illegal purposes." (p. 281)

Respondent Hasner also cites 220 West 42 Assoc. v. Cohen, 60 Misc 2d 983 (App. Term, 1st Dept. 1969), a case in which a main landlord was attempting to oust a sub-tenant because his sub-tenant was allegedly selling pornographic photos:

"The landlord in each proceeding alleged that the lease (or sublease) had been voided by subdivision 1 of section 231 of the Real Property Law (occupancy of premises for unlawful purposes). In neither proceeding did the landlord seek to terminate the lease under the provisions of the lease. The underlying claim in both proceedings was the undertenant Palace Books Inc. had sold photographs in its store alleged to be pornographic in violation of section 1141 of the Penal Law, thereby aborting the lease (or sublease). The proceedings were brought under subdivision 5 of section 711 of the Real Property Actions and Proceedings Law.

In Hauer v. Manigault (160 Misc. 758, 760) DAVID C. LEWIS, J. made this cogent comment about the forerunner of subdivision 5 of section 711 of the Real Property Actions and Proceedings Law: 'A penalty of such severity can only be imposed with caution. There should be either proof that the landlord-lessee [sic] participated in the use of the premises for the illegal purpose or evidence of his permission for such use of the premises. But that does not mean that there must be express consent. Passive acquiescence may spell consent; and a failure to protest or abate, after knowledge or notice is shown, may evidence acquiescence.'

The call for caution is reinforced by the well-settled rule that courts do not favor forfeiture of leases. 'Forfeitures are abhorrent to the law and will not be declared if there is any other reasonable theory upon which a case can be settled...' The continuation rather than the extinction of grants is favored. [Citations omitted]

A fair corollary to the foregoing is that when subdivision 1 of section 231 of the Real Property Law uses the word 'void', it means that the lease becomes 'void' at the option of the landlord. On the one hand, the landlord may not wish to insist on the forfeiture. On the other hand, a tenant would not be permitted automatically to abort a lease by performing illegal acts in the premises. Hence, the word 'void' in subdivision 1 of section 231 actually means voidable at the option of the landlord; and it was so stated long since (Shaw v. McCarthy, 59 How. Prac. 487-489 [1880]).

Both landlords (under the main lease and under the sublease) proceeded on the theory that the arrests alone were not sufficient basis to terminate the leases-they awaited convictions. In doing so they were eminently correct, for several reasons: (1) The arrests did not establish the crimes. (2) Proof of the crime, aliunde coalinedns, would have been extremely onerous, particularly in light of the decisions of the United States Supreme Court dealing with 'the dim and uncertain line' between proscribed obscenity and constitutionally protected expression. [Citations omitted] (3) The burden of proof is on the landlord to establish the illegality and he must prove the particular use alleged in the petition (138 West 49th St. Corp. v. Hotel Coleman, 237 N.Y.S. 2d 441, 443). Moreover, the Police Department had the right to bring proceedings to evict Palace Books, Inc. (Real Property Actions and Proceedings Law, 715) and brought no such proceeding." (p. 985-986)

Lastly Hasner cites People v. Scott 26 NY2d 286 (1970), which was cited in the quotation above from State v. Monarch Chemical, that an owner/landlord must retain at least a certain degree of control over his premises in order to be held liable for the tenant's act.

In Scott, the father/owner, while retaining adjoining land, leased land to his son/tenant and the son stored about 100 auto wrecks on the property in violation of a later town ordinance.

"In the absence of a reserved right of entry, the landlord has no common-law right to enter upon the demised premises (see Smith v. Kerr, 108 NY 31, 34; Ernst v. Straus, 114 App. Div. 19). Defendant has reserved such a right only for nonpayment of rent...

Requiring that the lessor retain control over the leased premises before he may be held responsible for matters with respect to it is not novel in this court. In negligence cases arising from a defective condition on demised property, liability will not attach when the landlord has surrendered control (see, e.g., Roark v. Hunting, 24 NY2d 470; Dick v. Sunbright Steam Laundry Corp., 307 NY 422). The reservation of the right of entry to make repairs without a concomitant covenant to do so will not permit a finding of sufficient control to hold the landlord (Dick v. Sunbright Steam Laundry Corp., supra; Appel v. Muller, 262 NY 278; Cullings v. Goetz, 256 NY 287). Similarly, the covenant alone will not give rise to the owner's liability (Lafredo v. Bush Term. Co., 261 NY 323). The owner has been held only when the facts justify a conclusion that control has been retained in fact (De Clara v. Barber S. S. Lines, 309 NY 620; Noble v. Marx, 298 NY 106; Scudero v. Campbell, 288 NY 328). These cases demonstrate a reluctance to find that the landlord has retained control for the purpose of declaring him a tort-feasor. By parity of reasoning, we will not strain to find control in order to attach criminal responsibility." (pp. 290-291)

New York courts have struggled for decades to fashion rules for determining who, as between landlord and tenant, must make, or bear the expense of, alterations, improvements, repairs, dismantlings or other work ordered by public authorities.

Although each case depends upon its own facts some guidelines have been developed in the form of a series of inquiries including: what was the intention of the parties (really what was contemplated or could be foreseen at the time the lease was executed) based upon the wording of the lease and the surrounding circumstances (4370 Park Ave. Corp. v. Hunter Paper Co., 10 M2d 1098 (Sup. Ct. Bronx Co. 1958); Cohen v. E & J Bass, Inc. 246 NY 270 (1927)); whether the tenant agreed to either perform repairs or comply with governmental laws and regulations, or both (Buhlen v. Gibbons, 24 NYSR 303, 3 NYS 815 (City Ct. Brooklyn 1889); whether the work ordered was structural in nature or expensive in proportion to the total rent (Herald Square Realty Co. v. Saks & Co., 215 NY 427 (1915); Melcher v. Sobel, 120 M. 378 (App. Term, 1st Dept 1923) aff'd 208 AD 799; whether the work ordered was required by the use of the premises made by the tenant or the landlord (Gregory v. Manhattan Briar Pipe Co. 174 AD 106 (2nd Dept 1916) aff'd 226 NY 561); and whether the work ordered was the result of a change in governmental policy made after execution of the lease (Herald Square Realty Co.supra

Here Paterno agreed to "...make all repairs... (Lease para. 2, see page 6 of this report), Paterno had the right "...to make any and all improvements and renovations..." (Lease Rider para. 6, see page 6 of this report), Paterno agreed to comply with all governmental orders (Lease, para. 17, see page 7 of this report), and Paterno agreed to obtain any and all necessary permits (Lease Rider, paras, 6 and 8, see page 6 of this report).

In these circumstances it cannot be said that there was a mutual intention between Hasner and Paterno that an unlawful, unpermitted deck would be constructed and ordered taken down by a governmental agency or that they could mutually foresee such developments.

Nor is the work required, simply sawing off the part of the deck seaward of the bulkhead, structural in nature.

What is or amounts to a structural change is not easy [of] definition. The term is elastic. In a sense, a fire escape or stairway is a structure; so, also, is a stepladder, a post, or a fence. By structural change, in cases of this character, I believe is meant such a change as to effect such a vital and substantial portion of the premises, as would change its characteristic appearance, the fundamental purpose of its erection or the uses contemplated or a change of such a nature as would affect the very realty itself--extraordinary in scope and effect, or unusual in expenditure" (p. 201).

The work to be ordered in this proceeding is across Whitman Drive from the main structure, the residence, and in no way shape or form meets the Pross case (cited to this day) definition.

Nor is the work to be ordered "unusual in expenditure" when compared to the total rent which is $1600 per year over 10 years or $16,000. If it cost $160 to saw off the deck it would be a lot and yet only one (1%) percent of the total rent. Compare Melcher supra where the tenant was required to remove from a building unlawful encroachments extending over the building line where the cost would be only, as here, a fraction of the total rent and, as here, the tenant had agreed to make repairs and comply with all governmental regulations.

As to the use to which the take-down order is to be directed here, this is clearly the tenant's sole construction of the deck and his exclusive use of it.

Nor has there been any change in relevant governmental policy here.

The ECL provisions and regulations have been the same since long prior to the signing of the lease and the construction of the deck. Thus such cases as Herald Square Realty supra, (where show windows extended from the building were legal when the building was built and leased and not illegal until 8 years into the lease, with their removal leaving a large hole in the front wall of the building and thus of a structural nature) and Holden v. O'Brien 209 AD 266 (1st Dept 1924) aff'd 240 NY 560 (where a front stoop encroaching on the street and legal when the building was built and leased was later ordered removed based upon a change in municipal policy, with here again the removal leaving a large hole in the front wall)--are irrelevant and indeed only support Hasner's innocence.

Thus, all of the relevant factors seem to line up in Hasner's favor; yet see also Gould v. Springer 206 NY 641 (1912) where the landlord was held to be not required to comply with a municipal board of health order to replace chairs and rugs fastened to the floor by the tenant of a Grand Opera House, simply on the basis of the facts that the landlord had no relevant obligation to repair and the violations were caused solely by the tenant.

Hasner is simply not responsible for Paterno's violation.

FINDINGS OF FACT

Respondent Paterno was never served with process and, in any case, did not receive adequate notice of the hearing.

The portion of the deck over tidal wetlands is an area protected by law.